Tilton v. Richardson is a landmark 1971 decision of the U.S. Supreme Court upholding a congressional grant program that made federal funds available to private religious colleges for constructing buildings. In light of Tilton’s having expanded the limits of governmental aid to religiously affiliated colleges and universities, this entry reviews the Court’s rationale and considers the case’s implications.
Facts of the Case
Tilton involved a challenge by taxpayers to Title I of the Higher Education Facilities Act of 1963, which made available grants to colleges and universities, including those that are religiously affiliated, in order to construct buildings and facilities that are used exclusively for secular educational purposes. The taxpayers objected to grants to four institutions in Connecticut, all of which were religiously affiliated, claiming that the law granting the funds to the institutions violated the taxpayers’ rights under both the Establishment and Free Exercise Clauses of the First Amendment.
A three-judge federal trial court in Connecticut upheld the act in the face of the Establishment Clause claim on the bases that it authorized grants to church-related institutions of higher learning and that it had neither the purpose nor effect of promoting religion. The court also held that because the grants did not coerce the taxpayers in the practice of their religious beliefs, it did not violate their rights under the Free Exercise Clause. Dissatisfied with the outcome, the taxpayers appealed to the Supreme Court.
The Supreme Court’s Ruling
On further review, a sharply divided Supreme Court, in a case in which no opinion commanded a majority, upheld the constitutionality of the act. The Court found that the act violated neither the Establishment nor the Free Exercise Clause. A four-justice bloc, led by Chief Justice Burger and joined by Justices Harlan, Stewart, and Blackmun, formed the plurality that announced the judgment of the Court. A fifth member of the Court, Justice White, concurred in the result, but not necessarily in the plurality’s reasoning.
Chief Justice Burger, as author of the plurality opinion, began by defining the scope of the act. The plurality pointed out that Congress intended the act to apply to all colleges and universities, regardless of whether they were religiously affiliated. The plurality then applied the three-part test that it articulated in Lemon v. Kurtzman (1971), which has become the judicial standard in controversies involving religion in both K–12 and higher educational settings. The judgments in both Tilton and Lemon were handed down on the same day.
In applying the Lemon test, the plurality was satisfied that Congress had a secular purpose in enacting the statute. The plurality explained that the act was constitutional because Congress carefully designed it to ensure both that funds would be available to assist institutions to serve the rapidly growing number of young people who wished to achieve a higher education and that the federal resources would be used for defined secular purposes, while expressly forbidding the use of these monies for religious instruction, training, or worship. In its analysis, the plurality added that none of the four institutions violated the act’s restrictions.
The plurality next determined that the act did not advance religion. In doing so, the plurality stressed that the money was not being used for facilities for religious purposes. Rather, the plurality acknowledged that the funds were being used to construct facilities such as libraries and performing arts centers. While upholding the statute as applied, the plurality explicitly invalidated a portion of the law that allowed buildings constructed with government funds to be used for religious purposes after a period of 20 years had expired, because this section unconstitutionally allowed a contribution of property of substantial value to religious bodies.
Finally, stressing the fundamental differences between K–12 education and higher education, the plurality posited that the act did not create excessive entanglement with religion. The plurality distinguished Tilton from Lemon, wherein the Court invalidated aid in the form of salary supplements to teachers in religiously affiliated nonpublic schools. The Court observed that the cases were significantly different, because in Tilton, religious indoctrination was not a substantial purpose or activity in the four institutions insofar as their student bodies were not composed of impressionable young people, the assistance was not ideological, and the one-time grants were for the single purpose of construction.
Having resolved that the act did not violate the Establishment Clause, the plurality quickly dismissed the Free Exercise challenge. The plurality rejected the taxpayers’ argument that by being compelled to pay taxes, a portion of which were used to finance the disputed grants, the taxpayers were experiencing coercion that was directed at their own religious beliefs. The plurality remarked that the grants were indistinguishable from other types of aid that the Supreme Court has permitted.
Justice White, who provided the crucial fifth vote, concurred. White declared that because states and the federal government had the authority to finance the separable secular function of higher education, the act passed constitutional muster. He also commented that even though religion and private interests other than education might substantially benefit from the act, these benefits did not convert the act into an impermissible establishment of religion.
Justice Douglas, along with Justices Black and Marshall, joined in a common dissent. The dissenters emphasized their belief that any aid to religiously affiliated institutions was unconstitutional. A fourth Justice, Brennan, dissented in Tilton while expressing his support for Lemon.
Impact of Tilton
Tilton is significant for higher education in three respects. First, Tilton stands for the proposition that the government may provide money directly to religiously affiliated colleges and universities without violating the Establishment or Free Exercise Clauses. As such, Tilton removed any doubt that there are circumstances under which the government may provide aid directly to religiously affiliated institutions. Second, the Court drew a constitutional distinction between pervasively sectarian activities such as religious instruction, training, and worship, on the one hand, and activities that would take place at any university, such as using libraries, laboratories, or residence halls, on the other. In fact, the Court invalidated a portion of the law that allowed the buildings to be used for religious purposes after 20 years. Third, in recognizing fundamental distinctions between education at the K–12 level and higher education, the Court upheld aid where sufficient safeguards were in place to avoid First Amendment concerns.
In the almost 40 years since Tilton, insofar as the Supreme Court has not overruled or limited its original judgment, the principle that religiously affiliated institutions may receive government assistance for nonreligious activities remains intact. Yet, while the Court has never repudiated the distinction between pervasively sectarian and secular activities, recent cases seem to blur the distinction.
See also Hunt v. McNair; Locke v. Davey; State Aid and the Establishment Clause; Witters v. Washington Department of Services for the Blind
Hunt v. McNair, 413 U.S. 734 (1973).
Locke v. Davey, 540 U.S. 712 (2004).
Note. (1991). The First Amendment and public funding of religiously controlled or affiliated higher education. Journal of College & University Law, 17, 381.
Roemer v. Board of Public Works, 426 U.S. 736 (1976).
Russo, C. J., & Mawdsley, R. D. (2005). The United States Supreme Court and aid to students who attend religiously-affiliated institutions of higher education. Education and Law Journal, 14(3), 301–311.
Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986).
Higher Education Facilities Act, Pub. L. No. 88-204 (1963).
Lemon v. Kurtzman, 403 U.S. 602 (1971).
Tilton v. Richardson, 403 U.S. 672 (1971).